A divorced
wife is entitled
to
maintenance
during her
E d i t .
S E C T . III.
W h e r e a man divorces his wife, her fubfiftence and lodging are
incumbent upon him during the term of her Edit, whether the divorce
be of the reverfible or irreverfible kind.— Shafe'i lays that no maintenance
is due to a woman repudiated by irreverfible divorce, unlefs the
be pregnant.— The reafon for maintenance being due to a woman under
reverfible divorce is that the marriage in fuch a cafe is ft ill held to
continue in force, efpecially according to our doftors, who on this
principle maintain that it is lawful for a man to have carnal connexion
with a wife fo repudiated.— With refpeft to a cafe of irreverfible &•
vorce, the arguments of Sh'afe'i are twofold; f i r s t , Kattima Bint
Kays has faid, “ My hufband repudiated me by three divorces, and
g ‘ the prophet did not appoint to me either a place o f refidence or a fub-
“ fiftence — s e c o n d l y , the matrimonial propriety is thereby terminated,
and the maintenance is held, -by Shàfèi, to be a return for
fuch propriety, (whence it is that a woman’ s right to maintenance
drops upon the death of her hufband, as the matrimonial propriety is
difl'olvedby that event;)— but it would be other wife if a woman repudiated
by irreverfible divorce be pregnant at the time of divorce, as
in this cafe the obligation of maintenance appears, in the facred writings,
which exprefsly direft it to a woman under fuch a circumftance.
T h e argument of our doctors is that maintenance is a return for cujioij,
(as was before obferved,) and cuftody flill continues, on account of
that which is the chief end of marriage, namely offspring, (as the
intent of Edit is to afcertain whether the woman be pregnant or not,)
wherefore fubfiflence is due to her, as well as lodging, which laft is
admitted by all to be her right ; thus the cafe is the fame as if fhe were
a finally pregnant; moreover, Omar has recorded a precept of the
prophet, to the effefl that “ maintenance is due to a w o m a n divorced
“ thrice
“ thrice during her E d i t — there are alfo a variety o f traditions to
the fame purpofe.
M a i n t e n a n c e is not due to a Woman after her hufband’s de- Nomainte-
ceafe, becaufe her fubfequent confinement [during the term of E d it, TwUow '°
in confequenee o f that event,] is not on account of the right of her
hufband, but of the law, the Edit of widowhood being merely a religious
obfervance, whence it is that fhe defign of afcertaining the Rate
of her womb is not in this inftance regarded, and accordingly the
Edit is not counted by the menftrual terms, but by time ; maintenance
is moreover due to a woman from.day to day, and the hufband’s rwht
in his property ceafing upon his deceafe, it is impoffible that any maintenance
fhould be made due from what is, after that event, the pro-
. perty of his heirs.
W h e n the feparation originates with the woman, from any thin® nor to a wife
which can be imputed to her as a crime, fuch as apoftatizing from the feparatL*'
•faith, or having carnal connexion or dalliance with the fon of her huf- originates’
band, fhe has no claim to maintenance during E dit, fince fhe has deprived
her hufband of her perfon unrighteoufly, in the fame manner as
if fhe were to go out of his houfe without permiffion.— But it is other- unle^s à
wife where the feparation originates with the woman from a circum- ^drcum-
fiance which cannot be imputed to her as a crime, as in a cafe o f op-
tion of puberty or manumiffion, or of a feparation demanded by her
on account of inequality, in all which cafes fhe remains entitled to
maintenance during E d it, as fhe has here legally withdrawn herfelf
from her hufband, in the fame manner as where fhe keeps herfelf
from him on account of nonpayment of her dower.
If a woman under triplicate divorce apoftatize from the faith, her Awifewhb
maintenance drops ; but if one in the fame circumftance admit the fon ha° no right
°f her hufband to carnal connexion, ftill her right to maintenance con-
“Hues, becaufe here the divorce has not been caufed by the apoftacy
or